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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Tuesday, July 11, 2017

I hope you never get tased. I have handled a few taser cases, and the plaintiff always testifies that being tased hurts like living hell, like being electrocuted. The taser shuts down your ability to control your body. Excruciating pain is the controlling factor. Officers are trained to use this device. Sometimes, the use of a taser lands everyone in court.

The case is Soto v. Gaudett, decided on July 5. The police tased Soto while he was fleeing the police. Soto was driving at night without headlights and made a turn without signaling. When the police tried to stop him, Soto drove off at a high rate of speed. He then got out of the car and ran away. The police told him to stop; he would not. As he was running across the street, a police car hit him and he was thrown backwards but kept running. An officer than activated his taser, which hit Soto. In the end, Soto suffered serious injuries: a fractured skull and severe traumatic brain damage. He cannot speak, walk or act as a functional human being. He also requires around-the-clock care.

The injuries are dreadful, but does he have a case? The Court of Appeals (Kearse, Jacobs and Pooler) says Soto does not. The Court applies qualified immunity, which asks whether the police violated clearly-established law. This gives the police the benefit of the doubt; even if they technically violated the Constitution, if they did not violate clearly-established case law as handed down by the Supreme Court and the Second Circuit, then the police are immune from suit. The Second Circuit appears to have abandoned granting qualified immunity when the officer's actions are objectively reasonable as a matter of fact. It became clear to the Court that that basis for immunity found no support in Supreme Court authority, and that the only basis for immunity is whether the officers violated clearly-established law. In the end, this narrow basis for immunity may not really help plaintiffs, as the immunity inquiry is still fact-specific, and the Court now asks whether the facts as set forth by plaintiff are close enough to prior cases to deny the officers qualified immunity.

This all plays out in this case. The Circuit says there are no cases as of the date of this incident -- January 23, 2008 -- that established that "a suspect who was fleeing had a right not to be stopped by means of a taser." That means the police are immune from suit; they had no basis at the time to known that someone running from the police had the right not to be tased. You may argue that if the suspect is running away and is presumably not armed, that there is no reason to tase him. But the police do have the right to seize people who are fleeing a legitimate police pursuit. The law in this area was simply to fuzzy for the police to be on notice that they could be liable under the Constitution. This all means that Soto cannot sue these officers. (The decision goes on to state that the district court identified factual issues for trial against the other officers who also pursued Soto, so he may still proceed against those defendants).